Judges Baffled by DHS Efforts to Deport Legal Immigrant

As the U.S.Chamber of Commerce renews their efforts to pass the Senate’s stalledimmigration overhaul that includes legalizing millions of illegal aliens, theU.S. Citizenship & Immigration Services (USCIS) continues its history oftrying to kick out taxpaying, crime-free, professional legalimmigrants–including earthquake engineers stuck in the broken system.

In the courtproceeding at the Ninth Circuit Court of Appeals in Pasadena, California, PatriciaPeters v. Janet Napolitano, No: 10-55889, the panel of three judges appeared to be in disbelief as to why the government has been trying to deport Peters. The case was originally filed against President George Bush’s DHS Chief, MichaelChertoff, and was automatically transferred to new DHS Chief Jeh CharlesJohnson after Napolitano resigned.

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Judge Callahan quizzed theOffice of Immigration Litigation (OIL) lawyer under theDHS, Patricia Bruckner, “Why are you so intent on removing this woman? Inprobably all of the people I have seen in ten years, she seems to be the leastculpable and the most productive.”

“If you are on FOX Newswhen you don’t remove someone; and it is a drunk driver that kills acitizen–you know, we have ordered removal, and they are not gone and they killsomeone,” Ninth Circuit Court of Appeals Judge Consuelo Callahan said to Bruckner. “I don’t think you would be on FOX News for letting MissPeters stay.”

“You would probably not makethe news at all but you will go home and sleep betterat night,” Judge Richard Tallman added.

Patricia Audrey Peters legallycame to America in 2001 from the United Kingdom–twelve years ago. She has spentthe last five years in heart-wrenching, time-consuming litigationwith the USCIS when they denied her adjustment of status application from H1-BVisa holder to permanent resident–the Green Card over what the governmentinitially claimed was an outdated form. For over three years, Peters has beenfighting deportation.

“This case seems like a triumphof bureaucracy over reality because just recently the government has hit uponthe proposition that the problem wasn’t an outdated form.” Judge Clifton saidto Bruckner, “Everybody appeared to have assumed that the problem was it was anoutdated document which in fact was not outdated under the regulations.”

Peters, as her attorney, KevinMokhtari of O’Melveny & Myers, said when he first addressed the court, “didnot come [to America] under clandestine means. She has committed no criminalact that has put her before this tribunal.”

“Instead she is a professional. A skilledworker who has come here from the U.K. and is actually here on a HB1 Visa,” he continued. “Shepays substantial taxes. She works fora venture capital firm and frankly if the economy is toturn around it is people like Miss Peters who are going to bring capital tothis country and create new jobs.” Peters is also ahomeowner.

Turning to Bruckner, the judgestried to figure out why the government had denied Peters’ application in thefirst place. At one point, seemingly frustrated, Judge Clifton asked her, “Sowhy exactly is that application not a valid application? You told me there wassomething missing, she’s not eligible. Why is she not eligible? And I hopethere is a reason that’s substantive other than paperwork.”

Bruckner’s initial defense onbehalf of the government changed mid-argument from an alleged “phantom filing”to claiming Peters’ application “was appropriately rejected” by a contractorbecause of incorrect filing fees. “The company did not follow the filing instructions,” Bruckner said. Shortly thereafter sheadmitted, “Actually, the petitions are returned [by the contractors] so we donot know exactly–“

Incredulously, Judge Tallmanasked her what the filing fee was.

Bruckner said because the USCIS fees and forms change periodically, “There wasa base fee of $185. Then if the company is not a nonprofit, and that’sdetermined by the Supplement [to the I-129 form that changed in 2005], there isa fee of either $750 or $1500. $750 if your company has fewer than 25 full timeemployees. I am assuming Impact Capital has more than that and then there is amandatory $500 [fraud prevention] fee.”

“So maybe the fee would havecovered your travel expenses to come out here to argue this case,” JudgeClifton responded, adding, “I have a lot of trouble understanding the logicabout why we’re here.”

Judge Tallman followed-upincredulously, “So now we are talking about a $600 difference?”

Bruckner, who acknowledged thatchecks were submitted with Peters’ petition, responded, “One for $940 and onefor $500,” and continued to justify the government’s position undaunted. “Well,the $500 fee was correct but the $940– none of the possibilities add up to$940. If, it should have been $185 plus either $750 or $1500 so if they hadfewer than 25 employees and were supposed to pay $750; it would have been $935and actually the agency has to–“

In what Judge Tallmanultimately called a “nightmare of bureaucracy,” one has to ask if the USCIS hasbeen attempting to throw out a professional, taxpaying legal immigrant foroverpaying the agency $5.00. Peters’ employmentsponsor had less than 25 employees. Once can’t be sure considering Bruckner isnot clear on the facts either.

In a mind-blowing moment, Bruckner proudly cited another case she had personally handled as an example ofhow the USCIS makes decisions when approving or denying legal immigrantspermanent status. In Alimordi v. USCIS, the government “denied” an earthquake engineer because his lawyer “late filed,” she told thejudges.

“We have to treat all applicants the same. It doesn’t matter if they are anearthquake engineer,” she said, calling it a “valid” position.

Until the very end, Brucknerheld firm that “the government’s position” in trying to remove Peters “[was]substantially justified.”

What Washington politicians donot want the public to know is that legal immigrants like Peters and Alimoridiare a part of a longstanding pattern of arbitrary, Vegas-like, unpredictable lawlessness at the USCIS–the broken immigrationsystem where legal immigrants spend years, even decades, waiting inbacklogs or in court. The system is so broken it has spilled over and clogsup the courts.

In Kazarian v. USCIS, forinstance, because a USCIS adjudicator may decide whether or not the legalimmigrant and their employment sponsor should have filed under “”extraordinaryability” versus “exceptional ability,” or vice versa, a legal immigrant can alsobe denied. It has been such an issue plaguing the USCIS and driving highlyskilled individuals out of America that the USCIS’ Ombudsman attempted toaddress it (again)in their CISannual report 2012, as I reported in Crime& Incompetence: Guide to America’s Immigration Crisis.

Peters and countless other legal immigrants stuck in the brokenimmigration system fight to stay and remain legal in the United States. Over five months after this hearingoccurred, the case remains unresolved.